dissenting:
Historically, there has been a continuing tension between the accused’s Sixth Amendment right of compulsory process to obtain witnesses in the defendant’s behalf and the witness’ Fifth Amendment right against self-incrimination. Sometimes, particularly in times of political stress, this tension exists because there is a popular pressure to bring out the facts at the expense of the individual’s Fifth Amendment protections against self-incrimination.
Interestingly, the net effect of the court’s opinion here is to project the judiciary into the domain of the executive branch. This executive function occurs when the court opines that there is no risk of prosecution, not because the testimony will not be incriminating, but on this court’s determination of present and future prosecutive policy. This is where I depart.
It is true that the trial judge, on a claim of the privilege against self-incrimination, should determine if the claim is fanciful. However, the nuances of what is fanciful, or some such test, is not very important here. In this case, we have no question about whether the claim of the privilege against self-incrimination is fanciful. The proposed testimony will be an admission of guilt, that is, a confession of possession of a controlled substance and thereby a violation of a criminal statute. There is nothing fanciful about that potential criminal liability.
Where the clash between the judiciary and the executive function came in this case was when the executive branch represented to the judiciary branch that “we will not immunize [Craig Carter] in advance ... without [eliciting] from the witness all the facts underlying the witness’ alleged criminal activity.” The government position was related by the trial judge as follows:
as a matter of fact it is rare — and I think that I would agree with the conclusion, that it is rare — extremely unusual for the government to ever prosecute misdemean- or drug possessions based on historical testimony.
[The government] notes that on the other hand in an occasional narcotics conspiracy case where there is historical testimony or evidence that is relevant as part of the evidence in the conspiracy, [the government] says to the extent that the government is being asked to predict what they will do in this matter, [the government] says that [the government] is unwilling to respond to that question, and [the government] is also unwilling to say up front that [it] will grant immunity.
The majority opinion describes the choice before the judge as follows:
If the risk that a witness will be prosecuted is real and not merely fanciful, the court must sustain the invocation of the privilege; the Fifth Amendment demands no less. If, on the other hand, the risk is merely fanciful, then the judge must reject the claim of privilege and permit the defendant to adduce the testimony of the witness; this is the command of the Sixth Amendment.
Ante at 355 (citation omitted) (emphasis in original). The majority concludes that “the judge must assess what may plausibly happen in the future, both in terms of what the prosecutor will have the legal authority to do, and in relation to what he may in fact do.” Ante at 355. I disagree with the majority’s conclusion that the judge must and should *360make an assessment about future likelihood of prosecution. The future, and a grant of immunity, are solely within the prosecutor’s discretion. Here, the prosecutor specifically refused a grant of immunity to the witness. This is a significant consideration in this case.
I agree with the overwhelming majority of cases across the land, especially in the federal circuits, which have determined that the judge should not speculate about or predict the likelihood of prosecution in relation to an assertion of the privilege against self-inerimi-nation. See, e.g., United States v. Sharp, 920 F.2d 1167, 1171 (4th Cir.1990) (stating that “courts should not engage in raw speculation as to whether the government will actually prosecute”); United States v. Edgerton, 734 F.2d 913, 921 (2d Cir.1984) (stating that the judge should not predict the likelihood of prosecution); United States v. Jones, 703 F.2d 473, 477-78 (10th Cir.1983) (holding that a court “should not attempt to speculate whether the witness will in fact be prosecuted” despite an affidavit stating that no criminal prosecution is underway); In re Corrugated Container Antitrust Litigation, 661 F.2d 1145, 1151 (7th Cir.1981) (stating that “validity of the privilege cannot be grounded on a district court’s prediction of the likelihood of prosecution”), aff'd sub nom. Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983); In re Corrugated Container Antitrust Litigation, 620 F.2d 1086, 1091-92 (7th Cir.1980) (stating that the judge should not predict the likelihood of prosecution), cert. denied sub nom. Adams Extract Co. v. Franey, 449 U.S. 1102, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981); In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir.1979) (stating that “we cannot agree that a witness’ constitutional privilege against self-incrimination depends upon a judge’s prediction of the likelihood of prosecution”); In re Keijam T., 628 A.2d 562, 566 (Conn.1993) (stating that the test is possibility of prosecution rather than likelihood of prosecution).
“The rarity of prosecutions under a particular statute, or a prosecuting attorney’s indication in a particular case that he will not prosecute, are not sufficient to defeat a claim of privilege” against self-incrimination. Choi v. State, 316 Md. 529, 560 A.2d 1108, 1112 (1989). In United States v. Miranti, 253 F.2d 135, 139 (2d Cir.1958), the court answered the same question this court is asked to answer in this case: “whether or not a witness can invoke his privilege against self-incrimination where practically there is only a slight possibility of prosecution.” The Mir-anti court answered the question as follows:
We find no justification for limiting the historic protections of the Fifth Amendment by creating an exception to the general rule which would nullify the privilege whenever it appears that the government would not undertake to prosecute. Such a rule would require the trial court, in each case, to assess the practical possibility that prosecution would result from incriminatory answers. Such assessment is impossible to make because it depends on the discretion exercised by a United States Attorney or his successor.
Id. at 139 (footnote omitted); see also In re Corrugated Container Antitrust Litigation, supra, 661 F.2d at 1151 (concluding that “The validity of the privilege cannot be grounded on a district court’s prediction of the likelihood of prosecution because the past and present behavior of prosecutorial authority is not a sufficiently accurate indication of the risk of criminal prosecution.”).
The government’s present intent to prosecute the crime does not affect the Fifth Amendment claim. United States v. Chase, 281 F.2d 225 (7th Cir.1960). In fact, reliance upon statements by the government that they will not prosecute or are not intending to prosecute will not extinguish the witness’ privilege against self-incrimination. See Estate of Fisher v. C.I.R., 905 F.2d 645, 649 (2d Cir.1990); Sharp, supra, 920 F.2d at 1171; Edgerton, supra, 734 F.2d at 921 n. 10; United States v. Johnson, 488 F.2d 1206, 1209 n. 2 (1st Cir.1973); Choi, supra, 560 A.2d at 1112. Nor will the practical assessment of the reality of prosecution defeat the privilege against self-incrimination. See In re Master Key Litigation, 507 F.2d 292, 293 (9th Cir.1974); Commonwealth v. Francis, 375 Mass. 211, 375 N.E.2d 1221, 1225, cert. denied sub nom. Francis v. Massachusetts, 439 U.S. 872, 99 S.Ct. 205, 58 L.Ed.2d 185 *361(1978); Commonwealth v. Colantonio, 31 Mass.App.Ct. 299, 577 N.E.2d 314, 318 (1991), review denied, 414 Mass. 1105, 617 N.E.2d 639 (1993); In re Knapp, 536 So.2d 1330 (Miss.1988); Grant v. State, 83 Wis.2d 77, 264 N.W.2d 587, 590-91 (1978). “Surely a witness need not be forced to testify on the assumption of prosecutorial sympathy or laxity.” Francis, supra, 375 N.E.2d at 1225.
The majority, while ignoring most other jurisdictions, attempts to specify what a trial court should do after it has determined that testifying might incriminate the witness. However, as one court well stated:
if the answers might incriminate, the court must then determine whether there is even a remote risk that the witness will be prosecuted for the criminal activities. However, this determination does not depend on the judge’s prediction of the likelihood of prosecution. Only if the possibility is “fanciful” will the privilege be denied. In Re Folding Carton Antitrust Litigation, 609 F.2d 867, 870 (7th Cir.1979). This standard has been labeled the “absolute bar” test in In Re Corrugated Container Antitrust Litigation, 661 F.2d 1145, 1151 (7th Cir.1981): Absent an absolute bar to subsequent prosecution, e.g., statute of limitations, or double jeopardy, “a judge’s prediction as to the likelihood of a prosecutor filing an indictment is not dis-positive in ascertaining the permissible scope of a claim of Fifth Amendment privilege.”
Mississippi State Bar v. Attorney L, 511 So.2d 119, 124 (Miss.1987). Thus, a court may only assess the possibility of future prosecution not the probability. In re Keijam T., supra, 628 A.2d at 566. “[Wjhether ‘as a practical matter,’ such a prosecution is ‘unlikely’ has no bearing.” Colantonio, supra, 577 N.E.2d at 318 (quoting Francis, supra, 375 N.E.2d at 1221).
This court should follow most of the federal circuits, in particular, and conclude that only the possibility, not the probability of prosecution is important in determining whether to uphold a witness’ privilege against self-incrimination. By this I mean that once the court has determined that the proposed testimony is potentially incriminating, the only evaluation left for the court is one that determines whether there is an absolute bar to subsequent prosecution. As one court explained:
To the extent that an assessment of the probability of prosecution is significant in the trial court’s evaluation of an asserted privilege, it is more properly accomplished through examination of the more traditional tests, viz, statute of limitations, immunity, double jeopardy. Short of the existence of one of these indicia of an absolute bar to subsequent prosecution, a judge’s prediction as to the likelihood of a prosecutor filing an indictment is not dispositive in ascertaining the permissible scope of a claim of fifth amendment privilege.
In re Folding Carton Litigation, supra, 609 F.2d at 872 (footnotes omitted) (emphasis added). Once incrimination is determined or ceded, then without an absolute bar to subsequent prosecution in the form of double jeopardy, immunity, or the statute of limitations, the court should uphold the witness’ privilege against self-incrimination.
The majority appears to consider itself bound by this court’s opinion in Jaggers v. United States, 482 A.2d 786 (D.C.1984), and its progeny when it concludes that the court must evaluate the likelihood, in practical real life terms, that the government will prosecute the witness. Ante at 356-57. However, as revealed by the dissent in Joggers, this court there impermissibly ignored its earlier precedent1 in Alston v. United States, 383 A.2d 307 (D.C.1987). Jaggers, supra, 482 A.2d at 800. In Alston we stated:
In the instant case, the possibility of additional prosecution for possessing an unregistered firearm and ammunition for such a weapon was not imaginary. The Corporation Counsel could have initiated charges on the basis of Burton’s testimony had it been given at appellant’s trial, and could have used it as evidence against Burton in a subsequent trial for violations of the Police Regulations. The danger of further incrimination therefore was real, for although the Corporation Counsel does *362not often elect to prosecute under similar circumstances, it would not have been unreasonable or impermissible for it to have done so here. See generally United States v. Miranti, 253 F.2d 135, 138-39 (2d Cir.1958). The trial court thus ruled correctly that Burton could decline to testify at appellant’s trial.
Alston, supra, 383 A.2d at 312.
The Alston decision was consistent with United States v. Miranti and, as we see, with the overwhelming number of jurisdictions that do not evaluate the real life chances of prosecution once the incriminatory nature of the testimony is found and the potential for prosecution, however slight, is determined by the court. I, therefore, respectfully dissent and suggest that this court may well consider that it should readdress, en banc, its departure from Alston in daggers (in contravention of the rule of M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971); and also free the trial court from the executive function and the unrewarding burden of trying to assess the likelihood of future prosecution.
I must take issue with the implication which seems to be left by the majority opinion in note 17: that there is no binding law that an accused’s right under the Sixth Amendment to compel testimony must give way to a witness’ Fifth Amendment privilege against self-incrimination. However, this implication disregards what the Supreme Court of the United States has stated when the Sixth Amendment power to compel testimony clashes with the Fifth Amendment. In Kastigar v. United States, the Court concluded:
The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor.
[[Image here]]
But the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be used. The Court has been zealous to safeguard the values that underlie the privilege.
406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972) (footnotes omitted). Thus, as the Supreme Court says, a defendant’s right to the benefit of exculpatory testimony must yield to the witness’ privilege against self-incrimination. United States v. Bowe, 698 F.2d 560, 565 (2d Cir.1983); Home v. State, 321 Md. 547, 583 A.2d 726, 728 (1991).
As matters stand, the net effect of the majority opinion would be to elevate the Sixth Amendment right of compulsory process to obtain witnesses in the defendant’s behalf to a superior position over the self-incrimination provision of the Fifth Amendment notwithstanding the Supreme Court’s clear expressions preventing this result and this where there is no actual dispute on whether the particular testimony would be incriminating. Under these circumstances, when there is a conflict between the Sixth Amendment rights of the accused and the Fifth Amendment privilege of the witness, the right to compel testimony must yield to the witness’ privilege against self-incrimination. See, e.g., United States v. Khan, 728 F.2d 676, 678 (5th Cir.1984) (stating that “an accused’s right to compulsory process must give way to the witness’ Fifth Amendment privilege not to give testimony that would tend to incriminate him”); United States v. Turkish, 623 F.2d 769, 774 (2d Cir.1980) (stating that “the Sixth Amendment’s Compulsory Process Clause gives the defendant the right to bring his witness to court and have the witness’s non-privileged testimony heard, but does not carry with it the additional right to displace a proper claim of privilege, including the privilege against s'elf-incrimination”), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981); United *363States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.) (stating that “The Sixth Amendment right of an accused to compulsory process to secure the attendance of a witness does not include the right to compel the witness to waive his Fifth Amendment privilege.”), cert. denied, 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 682 (1978); State v. Simms, 170 Conn. 206, 365 A.2d 821, 823 (stating same), cert. denied, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 199 (1976); State v. Ramsey, 99 Idaho 1, 2-3, 576 P.2d 572, 573-74 (1978) (stating same).
. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).